Fewer than 100 people held a license to grow industrial hemp last year — a plant Virginia considered marijuana not too long ago. They grew 135 acres, all of it for research.
This year, 7,000 acres will be planted in Virginia by more than 700 registered growers, thanks to new state and federal laws that are expanding hemp production and raising questions about how to police the plant and its illicit twin.
The farm bill signed by President Donald Trump in December and emergency Virginia legislation enacted in March allow cannabis plants with a low level of THC — the chemical that produces a high — as long as growers, dealers and processors register with the state government.
There are still, however, many evolving regulatory, law enforcement and other issues surrounding the burgeoning industry. For instance, while it’s legal for properly registered people to possess industrial hemp — cannabis with a THC content of 0.3 percent or lower — it’s still a crime to possess marijuana.
Police, however, do not have a field test that can readily differentiate legally possessed hemp from illegal marijuana.
A test that would indicate a plant was grown as hemp is being evaluated. But that test will not measure the percentage of THC content, said Linda Jackson, director of the Virginia Department of Forensic Science.
First Sgt. David Crawford of the Virginia State Police said Friday that police have a field test reliable enough to indicate a substance is cannabis that it can be used to establish probable cause to charge a suspect. But it can’t tell the difference between marijuana and industrial hemp.
“These are the things we have been wrestling with,” said Crawford, the marijuana eradication and asset forfeiture supervisor for the state police. He said a concern is that in other parts of the country, “there has been some commingling of the real stuff and the hemp.” Without a field test, he said, “how do you proceed on that?”
Crawford said commonwealth’s attorneys and others are also studying the problem.
Steven Benjamin, an area defense lawyer and past president of the National Association of Criminal Defense Lawyers, said a person in possession of what might otherwise be considered hemp plant who isn’t registered with the state is actually considered in possession of marijuana and can be prosecuted.
The affirmative defense offered by the law for properly registered people means they can still be charged with possession of marijuana, but not convicted if lab tests show it doesn’t have too much THC, Benjamin said. The burden will be on them to prove their possession was lawful, he said.
The Virginia General Assembly “legalized it, but just barely,” Benjamin said. “It’s fundamentally unfair to permit conduct for which you can be arrested and for which you have to prove the legality.
“Because of the legislature’s ambivalence about appearing to be decriminalizing marijuana or its products ... we have enacted an unworkable compromise that both frustrates law enforcement efforts and places at risk those who have registered to grow, process and deal a lawful product.”
The founder of the Virginia Industrial Hemp Coalition, Jason Amatucci of Nelson County, agrees. He said the affirmative defense provision was put in the law after concerns were raised by commonwealth’s attorneys.
“A lot of people lose their head over this. It’s really unfair that we put all this on people when this is a benevolent plant. It’s not intoxicating,” he said, even though it looks and smells just like marijuana. “It’s just like tomatoes, corn and blueberries. It has health properties, it has good stuff, but it doesn’t need to be treated any more differently because it looks like something that is an intoxicant.
“If [police] stop somebody, they have to have a reasonable suspicion that somebody has marijuana and not hemp. I know this law might have caught them off guard, but that’s a sign of the times. Things are changing.”
Sen. Frank Ruff, R-Mecklenburg, the Senate sponsor of the bill enacted in March, said: “My focus ... is with the tobacco acreage down that we look for a second crop that can replace that, and we think that growing hemp for fiber is a viable solution.”
“Certainly as we move forward, there will be some adjustments. Everybody is somewhat overly concerned about the whole issue of this new product. It’s an age-old product for Virginia, but it’s new in this generation.”
While no accurate field test is available, the Virginia Division of Consolidated Laboratory Services can accurately test for THC content in a laboratory and determine what is legally hemp and what is not.
State law allows the Virginia Department of Agriculture and Consumer Services to conduct random THC testing of plants in the possession of growers, dealers or processors. The department says that if an inspector contacts a grower to schedule an inspection, the grower is asked not to harvest the industrial hemp until the inspector has completed the sampling.
If the cannabis sample collected from a field, dealership or processing site has too much THC, the law requires the possessor to destroy it at their own expense in a manner approved and verified by VDACS.
Last November, VDACS reported to the General Assembly that when testing for the THC content of industrial hemp, it collected two samples from each of the varieties grown by researchers at state universities.
The state’s Division of Consolidated Laboratory Services tested the first samples and found that 41 had THC contents of less than 0.3 percent and four were more than 0.3 percent.
However, of those above the limit, only one was confirmed to be that high by a second test. So that plant, which had 1.7 percent THC, was legally a weak strain of marijuana. But that sample was in the possession of an investigator with a Drug Enforcement Administration controlled substance research registration allowing the possession of marijuana, meaning it didn’t have to be destroyed.
Ruff acknowledged that “the testing is going to be a challenge. There’s no question about that. We don’t have the lab capacity right now to do all that we can do as quickly as we can.”
Some plants of the same variety, grown in the same field, can have a higher THC content than others. The difference could be enough to make some of the plants illegal, a forensic chemist told the Virginia Board of Forensic Science earlier this month.
The chemist, Richard P. Meyers, a member of the Department of Forensic Science’s scientific advisory committee, also said a test in Switzerland last year indicated that even with the low THC level, people who smoke or otherwise ingest legal hemp could test positive for marijuana in a drug screening.
Erin Williams, senior policy analyst with VDACS, says other issues surrounding industrial hemp continue to evolve.
Until the 1950s, hemp was a significant agricultural crop, according to the Virginia Farm Bureau. Starting in Colonial times, hemp was grown for making rope, fishing nets and sails.
The 2014 federal farm bill allowed industrial hemp to be grown for research purposes by states that passed laws allowing it. The interest in growing it then was for producing paper and textiles, personal care and food products. But today’s explosive growth in the hemp industry is fueled largely by CBD, another chemical found in cannabis plants touted as having various health benefits.
In 2015, the General Assembly passed the Virginia Industrial Hemp Law, authorizing VDACS to establish an industrial hemp research program to be managed by state universities.
“The first crop of hemp was grown under this new program in 2016,” Williams said.
To obtain a research license, an applicant had to be working with a university and undergo a criminal background check. As of last year, Virginia Tech, the University of Virginia, Virginia State University and James Madison University had planted a total of 135 acres.
The state heard from growers and others who suggested that the industrial hemp ought to be treated more like any other agricultural product.
So the law was amended in 2018 to establish a research program — in addition to the higher education program — directly managed by VDACS with the aim of conducting more practical-level research. And the grower licensing program was replaced by a grower registration program that no longer requires a criminal background check. But applicants must not have been convicted of a felony drug charge for 10 years prior to applying.
There are now also processor and dealer registration programs in Virginia. The processors turn the raw hemp into products, and the dealers act as middlemen between the growers and processors.
As of last June 30, 85 individuals had active industrial hemp grower licenses in Virginia and were growing hemp in collaboration with one or more of the universities.
The 2018 Virginia law took effect on July 1. In December, Trump signed the 2018 federal farm bill, which redefined hemp by removing it from the federal definition of marijuana. The bill also removed the research requirement for production in the U.S.
During its 2019 session, the General Assembly followed suit, passing legislation reflecting the provisions of the federal farm bill on an emergency basis. Among other things, the amended Virginia law eliminated the research requirement.
“The governor signed the bill on March 21, and we’ve been furiously issuing registrations so that growers could get started with hemp production under the new law this growing season,” Williams said.
As of May 10, VDACS has issued 689 industrial hemp growing registrations, 105 processor registrations and seven dealer registrations. The grower registration applications indicate that the growers plan to plant more than 7,000 acres in industrial hemp this year, Williams said.
Before the federal farm bill, Williams said, “nationally the conversation around hemp shifted from a focus on fiber and grain varieties of hemp to a focus on floral varieties of hemp with [the] goal of producing an extract from the flower of those plants ... a CBD extract.”
Williams said she’s not sure whether there is currently a large registered processor operation up and running in the state. The majority of growers who have identified a processor are sending the crop out of state, and the product will primarily be a hemp-derived CBD oil.
The registered growers include longtime farmers looking for a new crop to add to their rotation and supplement what they are already doing, as well as people who simply want to give the plants a try and people who have land that has not yet been farmed.
The U.S. Food and Drug Administration has approved only one drug, Epidiolex, as a CBD pharmaceutical. According to the Mayo Clinic, CBD is considered an effective anti-seizure medication.
“State laws on the use of CBD vary. While CBD is being studied as a treatment for a wide range of conditions, including Parkinson’s disease, schizophrenia, diabetes, multiple sclerosis and anxiety, research supporting the drug’s benefits is still limited,” the Mayo Clinic says on its website, while also noting concern about the reliability, purity and dosage of CBD in nonprescription products.
Williams said the FDA has previously issued “Generally Recognized as Safe” notices for hulled hemp seed, hemp seed protein and hemp seed oil.
Hemp hearts, the hulled seed of the plant, can be bought at grocery stores and added to granola or consumed in other ways. Hemp seed oil is pressed from the seed and used as a cooking oil or in salad dressing, she said.
Otherwise, the FDA has said no cannabis-derived products are approved food additives or dietary supplements, and that has added a wrinkle to state hemp programs, Williams said.
In a letter Thursday to Virginia’s registered processors, VDACS said its food safety program is not able to approve the manufacture, distribution or sale of food products or dietary supplements containing a hemp-derived extract, including CBD oil.
“We recognize many Registered Industrial Hemp Processors are interested in producing hemp-derived extracts, including CBD oil, and will advise you of any relevant changes in law, regulation or policy that might impact your ability to produce hemp-derived extracts intended for human consumption,” wrote Jewel H. Bronaugh, the VDACS commissioner.
Last month, the FDA issued several warning letters to firms that market unapproved new drugs that allegedly contain CBD. “It is important to note that these products are not approved by FDA for the diagnosis, cure, mitigation, treatment or prevention of any disease. Consumers should beware purchasing and using any such products.”
Products with CBD derived from hemp — sold as gummy bears, capsules, oil drops and in numerous other forms — can be found in Virginia at convenience stores, gas stations, head shops and stand-alone CBD stores.